Frankfurter, Felix (1882–1965)

Author:Michael E. Parrish

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The immigrant son of Austrian Jews, Felix Frankfurter acquired a legendary reputation as a lawyer, law professor, intellectual gadfly, and presidential adviser even before President FRANKLIN D. ROOSEVELT named him to the Supreme Court in 1939. Unable to speak or write a word of English when he entered the public schools of New York City in the 1890s, he was graduated with honors from City College of New York and compiled a distinguished record at the Harvard Law School, where he fell under the influence of Dean James Barr Ames's historical methods, absorbed the constitutional theories of JAMES BRADLEY THAYER, and generally adopted the social and cultural trappings of the New England Brahmins, without their intellectual boorishness or political conservatism.

As a law professor at Harvard, Frankfurter introduced several generations of students to constitutional and ADMINISTRATIVE LAW, and invented a new field of study: the JURISDICTION of the federal courts. His students and protégés, including Dean Acheson, JAMES LANDIS, David Lilienthal, and Tom Corcoran, populated the federal bureaucracy from the days of WOODROW WILSON to those of JOHN F. KENNEDY. His 1917 report on the deportation of striking miners from Arizona by local vigilantes and his severe criticism of the procedural unfairness of the COMMONWEALTH V. SACCO & VANZETTI (1921) showed his deep concern for CIVIL LIBERTIES and political reform. That he should come to be known, at the end of his judicial career, as a conservative on many of these issues reflected not a weakening of personal convictions, but a strongly held view about the proper limits of the judicial function.

Frankfurter served on the Court between the two great periods of JUDICIAL ACTIVISM in this century. He arrived on the bench two years after the HUGHES COURT, retreating from its activism of 1935?1936, laid to rest the DUE PROCESS clause and the COMMERCE CLAUSE as instruments of judicial control over legislative ECONOMIC REGULATION. His retirement and replacement in 1962 by ARTHUR J. GOLDBERG permitted the Warren Court to enter its most activist phase through the expansion of due process and EQUAL PROTECTION to provide Americans with extensive new CONSTITUTIONAL REMEDIES against governmental encroachments upon personal liberties.

Frankfurter deplored both the conservative activism of the Hughes years and the liberal activism of the Warren era. From 1939 until 1962, he attempted to discover some middle ground for the Court to occupy that would be intellectually respectable, politically defensible, and morally satisfying. Although his ultimate posture of institutional self-restraint won him few plaudits from liberals and captured the fancy of only a minority among the legal intelligentsia, it had the virtue of predictability.

He rejected the PREFERRED FREEDOMS doctrine articulated by Justice HARLAN FISKE STONE in UNITED STATES V. CAROLENE PRODUCTS CO. (1938), where the latter urged the Court to adopt a two-tiered system of JUDICIAL REVIEW that would take the justices out of the business of shaping economic policy at large but expand their role as the arbiters of civil liberties, race relations, and criminal justice. When passing upon all constitutional questions, Frankfurter responded, the Justices should always act with restraint, avoid ultimate issues of power, and insist only upon a RATIONAL BASIS test for legislation, whether the challenged law concerned filled milk, labor relations, FREEDOM OF SPEECH, or CRIMINAL PROCEDURE. This judicial posture led Frankfurter to uphold a broad range of social and economic measures adopted by the states and the federal government after 1940, but it also earned him the enmity of constitutional liberals when he applied the same tolerant standards to less enlightened manifestations of the political process, including the SMITH ACT, the McCarran Act (see INTERNAL SECURITY ACT), a GROUP LIBEL statute, and the investigative techniques of the HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES.

Frankfurter also spurned Justice HUGO L. BLACK'S arguments for incorporating the BILL OF RIGHTS into the FOURTEENTH AMENDMENT'S due process clause. Like Frankfurter, the Alabama-born justice wished to chain the arbitrary power of judges in the wake of the Great Depression's constitutional crisis, and he urged the Court to replace "the vague contours of due process" with the specific prohibitions and guarantees of the first nine amendments. But beneath Black's façade of positivistic neutrality, Frankfurter suspected, there beat the heart of a judicial fundamentalist, moved by the plight of the poor and the oppressed but no less unbending than PIERCE BUTLER'S or GEORGE SUTHERLAND ' S. Frankfurter eschewed mechanical formulas such as Black's, and he believed that the INCORPORATION DOCTRINE lacked any historical basis in the

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Fourteenth Amendment. Incorporation, he feared, would encourage the Supreme Court to impose a single code of criminal procedure upon the states and would establish a more rigid judicial tyranny than even the conservative "Four Horsemen" had espoused during the 1930s.

From BETTS V. BRADY (1942) to MAPP V....

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